ERCOLI, v. PAIVA

The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

The plaintiff, an Indiana state prisoner, has brought this pro
se civil rights action pursuant to 42 U.S.C. § 1983. The
plaintiff claims that the defendants, law enforcement officials, private
citizens, and the plaintiffs public defender, all conspired against the
plaintiff in multiple criminal proceedings against him. By Minute Order
of October 31, 2003, the court granted the plaintiffs motion for leave to
proceed in forma pauperis but directed him to file an amended
complaint. This matter is before the court for consideration of the
amended complaint.

Under 28 U.S.C. § 1915 A, the court is required to conduct a prompt
threshold review of the amended complaint. Here, accepting the plaintiffs
allegations as true, the court finds that Count I states a colorable
federal cause of action against the three Lynwood, Illinois, police
officers (Kirby, Dorian, Tatgenhorst) who allegedly "kidnapped" the
plaintiff and searched and seized his car, all without the plaintiffs
permission, a search or arrest warrant, or probable cause.

However, even though the related criminal charges against the plaintiff
were ultimately dismissed, he has no cognizable cause of action against
the officers under 42 U.S.C. § 1983 for malicious prosecution.
Malicious prosecution claims are not actionable in federal court. Because
the plaintiff has a state-law remedy, there is no constitutional tort for
malicious prosecution.
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Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir.),
rehearing and rehearing en bane denied, 260 F.3d 824 (7th Cir.
2001). [Newsome does recognize that police who deliberately
withhold exculpatory evidence, and thus prevent the prosecutors from
complying with Brady v. Maryland, 373 U.S. 83 (1963), violate
the Due Process Clause. Newsome, 256 F.3d at 751, citing
Jean v. Collins, 221 F.3d 656 (4th Cir. 2000) (en banc),
cert. denied, 531 U.S. 1076 (2001). However, there is no such
allegation in the case at bar.]

Nor can the plaintiff sue the defendants in federal court for
auctioning off his vintage car. An unauthorized, intentional deprivation
of property by a state actor does not constitute a due process violation
if the State provides a meaningful post-deprivation remedy. Doherty
v. City of Chicago, 75 F.3d 318, 323 (7th Cir. 1996). The Illinois
Court of Claims provides the plaintiff with an adequate remedy to redress
his property loss. The plaintiff may also file an action in the state
circuit court for the tort of conversion. See Cirrincione v.
Johnson, 703 N.E.2d 67, 70 (Ill. 1998). Because the State has
provided an adequate post-deprivation remedy, the loss of the plaintiffs
property does not provide for recovery under § 1983. See Gable v.
City of Chicago, 296 F.3d 531, 540 (7th Cir. 2002).

The complaint must also be dismissed as to the defendant Teune, a
co-defendant in that case, who (the plaintiff claims) wrongfully
implicated him in the charges that were dismissed in October 2002. In
order to be liable under 42 U.S.C. § 1983, a defendant must have both
(a) acted under color of state law and (b) violated a constitutional
right. Papapetropoulous v. Milwaukee Transport Services, Inc.,
795 F.2d 591, 595 (7th Cir. 1986); Reichenberger v. Pritchard,
660 F.2d 280, 284 (7th Cir. 1981). In telling the police about the
plaintiffs involvement in the crime for
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which the two were arrested, Teune was neither acting under color
of state law nor violating the plaintiffs constitutional rights.

Even if Teune was lying, the mere fact that he talked to police cannot
be fairly characterized as part of a "conspiracy." While private parties
who conspire with state actors to deprive an individual of his or her
constitutional rights maybe sued under 42 U.S.C. § 1983, see Case
v. Milewski, 327 F.3d 564, 567 (7th Cir. 2001), Teune's cooperation
with the police is insufficient to support an inference that he reached
an understanding with them to violate the plaintiffs constitutional
rights. If the court were to hold otherwise, every informant or
co-defendant who made a deal with prosecutors could be liable under the
Civil Rights Act.

Turning to Count II, accepting plaintiffs allegations as true, the
court finds that the complaint states a viable constitutional claim
against the three Illinois police officers named above as well as the
defendant Vandenburgh, a Schererville, Indiana, police sergeant. The
plaintiffs claims that the defendants conducted a search of the
plaintiffs room without probable cause or a search warrant is actionable
under 42 U.S.C. § 1983. While a more fully developed record may
believ the plaintiffs claims-indeed, it strikes the court as inconsistent
for the plaintiff to claim both that the police had no search warrant
and that Vandenburgh lied on his affidavit of probable cause-the
defendants must respond to his allegations.

Count III is dismissed in its entirety. The plaintiff claims that
letters he wrote to his brother concerning a criminal case were
intercepted by his brother's landlords (the defendants Paiva and Rainey),
who turned the letters over to Teuene's fiancee (the defendant Marion),
who gave them to Teune, who passed them to the police. The plaintiff
contends that in doing so, the defendants "openly and tacitly conspired
to violate plaintiffs civil rights." The court disagrees.
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As noted above, private actors may be found to act under color of state
law when the defendants have conspired or acted in concert with state
officials to deprive a person of his civil rights. Case, supra,
citing Adickes v. S.H. Kress and Company, 398 U.S. 144, 152 (1970).
But "[i]n order to establish a conspiracy, the plaintiff must demonstrate
that the state officials and the private party somehow reached an
understanding to deny the plaintiffs their constitutional rights."
Case, 327 F.3d at 567 (citations omitted). It may be that
Teune's friends violated the law in stealing mail belonging to the
plaintiffs brother [they apparently explained that the mail arrived at
their house after the brother had moved away]. The plaintiff may also
prevail on a motion to suppress or obtain a reversal of his conviction on
the basis that illegally obtained evidence was used against him. However,
there is no allegation that law enforcement officials induced the
defendants to intercept the mail or otherwise acted in concert with the
private actors to commit an unconstitutional act. Count III is
accordingly dismissed, as are the defendants Paiva, Rainey and Marion.

Count IV, the plaintiff's "conspiracy" claim against Lake County,
Indiana, public defender Noah Holcomb, must be dismissed pursuant to
Heck v. Humphrey, 512 U.S. 487 (1994). "[W]hen a state prisoner
seeks damages in a § 1983 suit, the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must
be dismissed unless the plaintiff can demonstrate the conviction or
sentence has already been invalidated." Heck, 512 U.S. at 487.
Until the sentence has been invalidated, the cause of action for damages
simply "does not accrue." Id. at 490.

The plaintiff specifically states that he is not challenging his
conviction. Nevertheless, the plaintiffs accusations against Holcomb
would necessarily call into question the validity of his
Page 5
criminal conviction. The plaintiff maintains that Holcomb was
biased against him because the plaintiff had called Holcomb a racist
name; he further alleges that Holcomb held retaliatory animus against
the plaintiff for making verbal and written complaints about him. The
plaintiff asserts that Holcomb intentionally sabotaged his defense,
refused to file a motion to suppress the letters seized by Teune's
friends, and even told the jury in closing arguments that the plaintiff
was guilty of theft. [The amended complaint discusses at least two
separate criminal proceedings; it is unclear what charges were pursued,
which criminal proceedings relate to the four counts of the amended
complaint, and what crimes the plaintiff was eventually convicted of
having committed.] In short, the plaintiffs claim that Holcomb
deliberately botched the plaintiffs defense and effectively contributed
to his conviction is barred by Heck, without regard to whether
Holcomb could be considered a state actor or co-conspirator with state
actors.

The plaintiffs motion for service of summons is granted. The clerk
shall issue summonses forthwith, but only for the defendants Kirby,
Dorian, Tatgenhorst and Vandenburgh. The clerk shall further send the
plaintiff a Notice of Availability of a Magistrate Judge and Instructions
for Submitting Documents along with a copy of this order.

The United States Marshal's Service is appointed to serve the
defendants. The U.S. Marshal is directed to make all reasonable efforts
to serve the defendants. With respect to any former police officers who
no longer can be found at the work address provided by the plaintiff, the
Lynwood, Illinois, and Schererville, Indiana, Police Departments shall
furnish the Marshal with the defendant's last-known address. The
information shall be used only for purposes of effectuating service [or
for proof of service, should a dispute arise] and any documentation of
the address shall be retained only by the Marshal. Address information
shall not be maintained in the
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court file, nor disclosed by the Marshal. The Marshal is authorized
to mail a request for waiver of service to the defendants in the manner
prescribed by Fed.R. Civ. P, 4(d)(2) before attempting personal service.

Pursuant to Fed.R.Civ.P. 30(a)(2), the defendants are granted leave
to depose the plaintiff at his place of confinement.

The plaintiff is instructed to file all future papers concerning this
action with the clerk of court in care of the Prisoner Correspondent. The
plaintiff must provide the original plus a judge's copy of every document
filed. In addition, the plaintiff must send an exact copy of any filing
to the defendants [or to defense counsel, once an attorney has entered an
appearance on their behalf]. Every document filed must include a
certificate of service stating to whom exact copies were mailed and the
date of mailing. Any paper that is sent directly to the judge or that
otherwise fails to comply with these instructions may be disregarded by
the court or returned to the plaintiff.

Finally, the plaintiff's motion for appointment is denied. Indigent
parties in civil rights actions who are unable to obtain an attorney may
apply to the court for appointment of counsel under
28 U.S.C. § 1915(e)(1). See McKeever v. Israel, 689 F.2d 1315, 1318 (7th
Cir. 1982). However, civil litigants have no constitutional or
statutory right to be represented by counsel in federal court. See
Merritt v. Faulkner, 697 F.2d 761, 763 (7th Cir. 1983);
Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). The decision
to appoint counsel lies within the broad discretion of the court.
Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir.
1992).

In exercising its discretion, a district court is guided by several
factors: (1) the merit of the indigent plaintiffs claims; (2) the
plaintiffs ability to investigate crucial facts; (3) whether the nature
of the evidence indicates that the truth will more likely be exposed if
both sides are
Page 7
represented by counsel; (4) the capability of the indigent litigant
to present the case; and (5) the complexity of the legal issues raised.
Swofford v. Maxwell, 969 F.2d 547, 551 (7th Cir. 1992),
relying on Merritt v. Faulkner, 697 F.2d 761, 764 (7th Cir.
1983); see also Maclin v. Freake, 650 F.2d 885, 887-89 (7th Cir.
1981) (inter alia). "[O]nly when the cases are colorable, the
facts may be difficult to assemble, and the law is complex" will judges
request an attorney to assist the litigant. DiAngelo v. Illinois
Dept. of Public Aid, 891 F.2d 1260, 1262 (7th Cir. 1989). As an
additional threshold consideration, a litigant seeking appointment of
pro bono counsel must show that he has made a reasonable attempt
to retain private counsel, or that he is effectively precluded from
making such efforts. Jackson, 953 F.2d at 1072.

After considering the above factors, the court concludes that
appointment of counsel is not warranted in this case. First, there is no
indication that the plaintiff has attempted on his own to retain counsel,
as required by Jackson, supra. In any case, although the
plaintiff has articulated colorable claims, he has alleged no physical or
mental disability that might preclude him from adequately investigating
the facts giving rise to his complaint. See Merritt, 697 F.2d at
765. Neither the legal issues raised in the complaint nor the evidence
that might support the plaintiffs claims are so complex or intricate that
a trained attorney is necessary. Notwithstanding his limited formal
education, the plaintiff appears more than capable of presenting his
case. It should additionally be noted that the court grants pro
se litigants wide latitude in the handling of their lawsuits.
Therefore, the plaintiffs motion for appointment of counsel will be
denied.

IT IS THEREFORE ORDERED that the plaintiff is granted leave to proceed
against the defendants Tatgenhorst, Kirby, Dorian and Vandenburgh on
Counts I and III, but only insofar as the plaintiff complains of illegal
searches and seizures. Counts III and IV, the plaintiffs
Page 8
conspiracy claims, and the defendants Paiva, Rainey, Marion, Teune
and Holcomb are all dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

IT IS FURTHER ORDERED that the plaintiffs motion for service of summons
[docket #8] is granted.

IT IS FURTHER ORDERED that the plaintiffs motion for appointment of
counsel [docket #4] is denied.

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